Category: Volume 2014

Article by: Mickey H. Osterreicher

2014 PEPP. L. REV. 76 (2015)

News organizations and individual journalists eagerly anticipate safely utilizing Small Unmanned Aerial Systems (sUAS) for newsgathering purposes as lawmakers integrate sUAS into the National Air Space (NAS). For now, these potential users may be flying over an “unchartered” regulatory landscape while the FAA struggles to complete its administrative rulemaking.

In order to better understand how media organizations and individual journalists intend to use sUAS for newsgathering purposes, the National Press Photographers Association (NPPA) developed a survey consisting of twenty-one multiple choice questions, with space for elaboration, and three questions seeking narrative responses.
The survey was distributed via email to approximately fifty news organizations and media associations. There were 680 responses, mostly from those identifying themselves as “journalists,” with the next largest group being news managers. Others responding to the survey include attorneys, academicians, and students. The survey began on February 3, 2014 and remained open until March 13, 2014. The survey answers provide a first-of-its-kind study of this subject.

This paper, which was originally presented at the annual meeting of the Association for Unmanned Vehicle Systems International (AUVSI) in Orlando, Florida, in May 2014, introduces the reader to a brief history of manned flight and photography, leading with the natural progression of the two technologies, to sUAS use for newsgathering. The paper explores the ups and downs of current and proposed FAA policies and regulations regarding sUAS use. Other issues addressed include: state legislation as well as some recent incidents and cases involving sUAS. Also examined are some of the proposed requirements found in the FAA’s UAS Comprehensive Plan and the FAA Roadmap for Integration of Civil UAS in the NAS.

Past privacy debates may be prologue to the present discussion when pondering new rules and legislation. The historical debates between privacy concerns on the one hand and newsgatherers’ use of emerging technologies on the other are also examined.

The paper also explores how journalists may better understand and participate in the rulemaking process as well as proposals for striking an appropriate and acceptable balance between First Amendment protected newsgathering activities and privacy concerns.

Article by: Michael Morea

2014 PEPP. L. REV. 59 (2014)

There has been substantial debate over the constitutionality of Lincoln’s response to secession and his role as executive during the Civil War. While many historians and legal experts accept the theory that Lincoln, as president, was vested by Article II with power to act decisively in suppressing secession in an effort to preserve the Union, there is branch of libertarian thought that remains unconvinced that his tactics were constitutional. For example, three-time presidential candidate Ron Paul, in an interview with “Meet the Press,” stated that Lincoln should not have gone to war, arguing that Lincoln’s actions were motivated by the desire to enhance the federal government’s power “and get rid of the original intent of the republic.” Likewise, economics professor Thomas DiLorenzo has penned two books in a bid to “unmask” Lincoln as an unconstitutional executive and has written pieces on numerous libertarian websites defending the South’s right to secede.

This article will not rehash these debates but will introduce a novel constitutional argument to support his initial actions, appealing to Article IV’s Guarantee Clause, which explains that the federal government shall “guarantee to every State in this Union a Republican Form of Government and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” While there has been considerable discussion of the Clause, primarily focused on justiciability issues, it has never been drawn upon in the context of the early stages of the Civil War itself. This paper will attempt to lay out a constitutional foundation for its utilization by defining what a “republican form of government” is and then applying that to the factual scenario present in 1861.

Article by: Adam Knobler

2014 PEPP. L. REV. 35 (2014)

The famous eighteenth century German writer, artist, and politician Johann Wolfgang von Goethe once remarked that, “[h]e is happiest, be he king or peasant, who finds peace in his home.” Indeed, one’s home can provide a welcome refuge from the fast-paced, high-stress lifestyle of the modern world. Unfortunately, without the necessary housing accommodation or modification, tenants with disabilities cannot enjoy the same sense of comfort and convenience that many of us associate with our homes. More and more, landlords are denying tenants with disabilities housing accommodations or modifications out of ignorance, apathy, or outright prejudice. Often the tenant must bear the burden of locating alternate housing, while the landlord needlessly loses valuable rental income. Should the tenant decide to file a complaint with the Department of Housing and Urban Development (HUD), what ensues is a lengthy, bureaucratic investigative procedure. Should the tenant instead choose immediate litigation, the result is often the same. As an alternative to these forms of dispute resolution, this article suggests the use of a specialized mediator to resolve disability accommodation disputes in the landlord/tenant context.

After first providing a background on federal housing laws that prohibit discrimination based on disability, this article then proceeds to describe and analyze the remedies available to tenants who have experienced disability discrimination. The article concludes that, not only are such remedies as filing a complaint or pursuing litigation difficult and time-consuming, they could also damage the long-term relationship between the parties and preclude the possibility of creative remedies that satisfy the needs of both parties. The article finishes by proposing that HUD develop an agency-wide mediation program based on the model of the Equal Employment Opportunity Commission (EEOC) mediation program, with a mediator who specializes in federal housing laws and who has experience with mediating disability accommodation disputes.

Article by: Ashley Cook

2014 PEPP. L. REV. 17 (2014)

An arbitral tribunal’s power to decide its own jurisdiction is its kompetenz-kompetenz and is a “conceptual cornerstone[] of international arbitration as an autonomous and effective form of international dispute resolution.” The inherent requirement that parties to a valid arbitration agreement (AAG) must honor that agreement by arbitrating their disputes precludes national courts from tampering with the result of a valid arbitral award. National courts must respect and uphold valid AAGs as enshrined in Article II(3) of the New York Convention: The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative[,] or incapable of being performed.

However, because the Convention does not provide a firm definition as to what defects qualify as “null and void, inoperative[,] or incapable of being performed,” States are free to exercise significant discretion. State discretion under the Convention extends to when and under what circumstances national courts will hand over jurisdictional decisions to tribunals. The result has been unreliable practices of kompetenz-kompetenz in different nations across the globe, calling into question whether kompetenz-kompetenz is truly the “inherent power” of arbitral tribunals.

This paper analyzes differing views and approaches to kompetenzkompetenz and proposes a workable framework of kompetenz-kompetenz for the future. Part II provides an overview of the general principle of kompetenz-kompetenz, discussing the views of some of the leading international commercial arbitration scholars on kompetenz-kompetenz. Part III analyzes the approaches taken by the United States and the United Kingdom and uses them as helpful illustrations of kompetenz-kompetenz in practice. Part IV notes the shortcomings of the aforementioned approaches and proposes a limited form of negative kompetenz-kompetenz as the solution. Part V concludes.

Article by: Katelin Eastman

2014 PEPP. L. REV. 1 (2014)

As the distinctions between investment advisers and broker-dealers continue to blur, “retail customers today see little difference between a broker and an adviser.” Their confusion is warranted in that approximately forty percent of all broker-dealers are in control of, or associated with, an investment firm that performs advisory services. The blurred roles of broker-dealers and investment advisers have also bred a high degree of mistrust among American investors given recent scandals surrounding Bernard Madoff’s billion-dollar Ponzi scheme and the Securities and Exchange Commission’s Goldman Sachs investigation. It is therefore necessary to re-visit broker-dealers’ fiduciary obligations and establish a uniform standard throughout the financial services industry.